You may recall that this all started with PXG claiming that, with the P790 iron, TaylorMade violated several PXG patents. In an unusual step, PXG also filed suit against select retailers for selling the allegedly infringing irons. Claiming that allowing the P790 to remain on the market would do irreparable harm, PXG also sought a preliminary injunction blocking the sale of the P790. That request was denied shortly thereafter, and then things went mostly quiet until two weeks ago.

The latest salvo has TaylorMade filing a counterclaim in which it argues that while it didn’t violate any PXG patents, several current PXG products infringe on TaylorMade patents. TaylorMade has asked the court to prevent PXG from selling the allegedly infringing products. For good measure, TaylorMade has also asked the court to declare five of the patents PXG used as the basis for its original complaint invalid.

Sound familiar? All that’s missing is a cursory “I know you are, but what am I?”.

According to Stachura, the offending PXG products include entire 0311 Iron family, as well as the 0811 Driver and 0341 Fairway Wood. Stachura observes, “TaylorMade isn’t interested in stopping the sale of just one product. It’s going after nearly all of PXG’s inventory.”

Classic tit for tat and I expect that same result; TaylorMade gets to sell its 790, PXG will likely keep selling too.

Following the Script

To no small degree, this mirrors the approach Titleist has taken in its current litigation with Costco over the Kirkland Signature Ball. And while this gives the appearance of TaylorMade playing hardball with an industry outsider, sadly this is mostly boilerplate patent litigation stuff.

It goes a little something like this:

You infringed! No, you infringed!

Your patents are invalid! No, your patents are invalid!

It’s not so much a calculating war as it is what the late George Carlin would term a prick-waving dick fight.

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You Just Now figured it out?

While I can’t speak to what either side actually believes to be true regarding the validity and subsequent infringement upon their respective patents, from the outside, the sudden discovery by TaylorMade’s crack team of patent scholars that a collection of two and a half-year-old PXG products infringes on its IP reeks of intellectual dishonesty.

Call it a leverage play meant to put PXG on the defensive. It’s possible TaylorMade has a case – I’ve been told nearly every golf product infringes on something else if you look hard enough. The strategy might even work too, but it’s hard for me to believe either that TaylorMade previously failed to notice its IP was being borrowed, or that it was previously content to give PXG a free pass to use its intellectual property to rule the premium market and potentially take dollars out of TaylorMade’s pocket.

2.5 years on the market and you just now noticed? Really?

What’s Next

A preliminary hearing in the case is set for early next month, and while the outcome is anything but certain, I suspect both sides will eventually agree that they’ve spent enough money and that it’s in both parties’ best interest to walk away.

Tony Covey

Tony is the Editor of MyGolfSpy where his job is to bring fresh and innovative content to the site.
In addition to his editorial responsibilities, he was instrumental in developing MyGolfSpy's data-driven testing methodologies and continues to sift through our data to find the insights that can help improve your game.
Tony believes that golfers deserve to know what's real and what's not, and that means MyGolfSpy's equipment coverage must extend beyond the so-called facts as dictated by the same companies that created them.
Most of all Tony believes in performance over hype and #PowerToThePlayer.

39 Comments

Steve Defranco

1 year ago

Instead of speculating, has anybody else actually tried a patent search? PXG recently patented a cavity that runs from sole to crown and which is filled or partially with an elastomeric polymer. Going back to 2001, I couldn’t find a Taylor made patent for anything like that. (As aside, TM has patents on slots through the club to make the face more flexible – wonder if they will now sue about the Wilson Speed slots..)

Steve S

1 year ago

Been around patents and patent lawyers since 1974. Actually did a patent search in the US patent office in Washington DC, once. That was before they had scanned all the patents and they were searchable online. Was looking for a patent from the 1930’s….anyway…..

My experience is that if you make a patent claims too broad(all encompassing) that a good attorney can find prior art that will invalidate your claims. If you make your claims too narrow then they “defendable” but are easier to design around.

Most honest patent attorneys will tell you that 1/3 to 1/2 of the patents filed and granted can be partially or completely invalidated when challenged.

Bottom line is that most companies today file patents so that no one can prevent them from making their products by filing first. Taylormade is just getting PXG to back off their actions.

This backs up what we’ve been told. There’s an art to crafting an *almost* bulletproof patent, but it’s far too easy to get a patent approved, and far too difficult to defend your patent if it happens to be among the 50% or so that should have been issued in the first place.

And so both with respect to patent filings and patent litigation, lots of noodles get thrown in the hope something sticks.

Steve S

1 year ago

Exactly. There is also something else that I failed to mention. Some technologies are truly new and different…..like a computer chip made from biological material. A justifiable use of the patent system

A device used to strike a ball…not so much, since people have been doing that for hundreds and maybe thousands of years. The uniqueness will come in the use of new materials for the same application which is hard to defend without making the claim so narrow that it’s almost useless. Older industries have this problem, steel making for example. Many of them have chosen to go the “trade secret” route which can keep your technology hidden forever. The formula for Coke is a classic example.

Chisag

1 year ago

“While I can’t speak to what either side actually believes to be true regarding the validity and subsequent infringement upon their respective patents, from the outside, the sudden discovery by TaylorMade’s crack team of patent scholars that a collection of two and a half-year-old PXG products infringes on its IP reeks of intellectual dishonesty.”

Really? Aside from your bias Tony, how about the obvious. TaylorMade ignored Parsons until he decided to be a Dick about it. Glad someone is willing to at least tell Parsons he is an arrogant bully and if he is gonna flex his mouth, they will reciprocate.

In TaylorMade, you have a company that from 2013 to EOY 2016 lost an estimated combined 200 million dollars. It lost significant market share in the iron category where it went from #1 a few years ago to double digits behind the leading brand. It lost a good chunk of metalwoods share as well (this year it lost its #1 metalwood position for the first time in a decade+). Its financial situation was such that adidas sold it to private equity firm KPS for pennies on the dollar of its original ask. To save money, the company is making cuts (you’ll see the tour impact beyond Sergio come Jan 1).

None of that is bias, it’s absolute fact.

Meanwhile, PXG has grown market share and made a significant impact on the premium market and despite assumptions that it would never do so, now operates in the black. You can be certain that some of that growth comes from customers who might otherwise have bought TaylorMade (and Callaway and Titleist) products. That’s not to say PXG is to blame for TaylorMade’s woes, but it is a small contributing factor.

That is also true.

So we have a situation where PXG is directly contributing to lost TM revenue to some small degree for the better part of two years during which TM struggled financially, and you believe TaylorMade was content to let PXG infringe so long as Bob didn’t decide to be a dick? I assure you the golf industry doesn’t work that way.

As I said, TM’s response is textbook patent litigation. Somebody sues you, you sue them back. You make a bunch of half-baked claims which your adversary has to defend. It’s all about making the other guy spend money. It’s a shitty process (created by lawyers, for lawyers) and I fully expect PXG will now go searching for something equally as dubious to throw at TaylorMade.

You can be glad that TaylorMade is standing up to Parsons (interesting how you’ve made it about him and not his brand or product – bias?), but here’s your reality check – regardless of who (if anybody) infringed on what patents, TaylorMade is a significant underdog in this fight. Patent litigation is all about dragging cases out and making the other side spend big on legal fees.

So with that in mind, who do you think is in better shape here, the privately held company owned by a headstrong multi-billionare, or a highly-levered company owned by a bean-counting private equity firm?

Christian Washington

1 year ago

Amazing all of the amateur lawyers on the board here. PXG *had* to sue because TM actually infringed upon their patent. (Whether the patent will hold up is another argument.) If PXG didn’t file suit, it would have opened the door to EVERY other club manufacturer to copy/paste. Doesn’t matter if you like PXG. Think of it this way: If you started a business from scratch, patented your tech and methods, then someone came along and pinched your design after a few years – what would you do?

Spitfisher

I can tell you unequivocally the sale of the Taylormade 790 irons sky rocketed due to bullet Bob Parsons ego and subsequent suit for a temporary restraining order against taylormade.

He lost

Taylormade won with a very good product launch and with Bobs help. They sold out in weeks.

PXG must be panicking now of where their second wave of golfers are going to come from to sell to. I believe most of the “first adopters have purchased or at least hit the PXGs. Many who purchased the 790s were previous Titleist AP2, Mizuno ( any model) and Cally Apex/razor owners that want new. And they loved them.

Chris Dillon

1 year ago

I really hope this isn’t some ploy to get Parsons (PXG) to buy TaylorMade. This has happened in the past hasn’t it? Company get sued, and rather than pay a judgement they bought the rival?? I find it insulting Parsons, who is a Marine, names his overpriced clubs after Navy & Marine occupational specialty codes (0311 is an Infantry Marine)…

robin

P.J.

1 year ago

Now here’s an interesting test…. PXG vs Taylormade irons.
See if there’s a performance difference.
I’d chip in some cash to get this test rolling, because you know PXG isn’t going to donate clubs for this test!

Stephen Pearcy

1 year ago

Seems like a biased article. Plenty of good reason for Taylormade to be acting now rather than 2.5 years ago. Not the least being is that it wasn’t a significant commercial issue until now. It is true that the suit probably won’t go anywhere but the action may stop PXG from filing suits that all know they can’t win – suits intended for publicity. How about an solid, unbiased side-by-side comparision so we can all see if more money really makes a difference.

Steve

John Fatte'

1 year ago

Correct me if I’m wrong, but Bob Parsons got into the golf club business because he thinks he can make a better club than anyone else. Did he? Not sure, but when I talked to the best fitter in Kansas City, he said his clubs (irons) are a half to a full club longer than anyone else. Does that make them better? Your mileage may vary on that answer. But I don’t think he would go out and sue someone if he didn’t feel that his intellectual property was being infringed on and he didn’t file this suit until TM released the P790 so there must be something in that club that brought about this lawsuit. I think PXG did something for the market that no one else did…introduce a high end product for those that have the resources to play it.

Skip

10shot

1 year ago

U R correct, PXG cant even keep the Black Magic Marker on their irons. Yep, great clubs. As usual,make it expensive, fools will buy. Like the Beats head phones, they use weights in the ear cups. People think heft equals quailty, head phone quaily always at the bottom of reviews.
As if PXG has developed an iron feature the big 4 havent thought of, OK
popcorn pls

Christian Washington

1 year ago

Curious. Have you been fitted for PXG clubs?

thomas murphy

1 year ago

this isn’t just a golf problem, this is a problem with the patent system in general. In the software world this is one of the reasons to buy companies…you don’t want the technology, you don’t want the customers, you want the patent portfolio so you can litigate…they are called patent trolls. There is a purpose for patents but like most things (and sorry lawyers) lawyers (and the associated money) have screwed things up. Titleist and Costco…golf balls have gone through reams of litigation. Should you be able to patent a dimple pattern? How broard/narrow is a patent, etc. you have to have them, it often is a key thing when you are taking a company public…and if you don’t litigate the patent, it becomes null and void. So I am not surprised in either case here, just another reason those clubs cost so much. hmmm

Simms

1 year ago

That Costco ball has done a good job pushing the prices down on many of the big boys balls…if they can keep it going at least from time to time we will see the less then PROV1 type balls come down even more..is there anyone that would pay $36 for a dozen Titleist NXT if you could get Kirklands for $15????

10shot

1 year ago

Like ur response, just bought 2dz of NXT at the pro shop $25.00dz. Keep up the lawsuit, people coming out of the 50.00dz haze, saying whoa. Ball prices are coming down

MGoBlue100

1 year ago

Totally agree with your points. I’ve had a little experience with patents, and think that one of the larger issues is that the patent office is in over their head when it comes to most of the patents. That’s where your patent attorneys come in. If they have a convincing argument, you receive your patent. Later, if someone feels you’ve infringed, the attorneys win again. Moral: Raise your kids to become patent attorneys!

Robin

Brian Miller

Milton Taylor

1 year ago

Honestly this wasn’t the smartest of moves in my humble opinion. What PXG did by attempting to suit was saying your equipment works just as well as ours.. (to the average golfer). Now, Tahlormade in their efforts to go tit for tat are doing the same…. What do I know, just my thoughts, but Taylormade was in the Drivers seat…. no pun intended, but know it looks a little different.